Ex-Chief Justice Zaki: Tobacco GEG Likely Unconstitutional, Discriminatory, And Endangers Civil Liberties

“While we take our hats off to the Minister for his determination to one day totally eradicate the smoking habit, it must be ensured that in the course of doing so, the generations of tomorrow will not come to regret the decisions we make today” — sixth Chief Justice of Malaysia, Zaki Azmi.

KUALA LUMPUR, Sept 14 – The proposed generational ban on tobacco and vape under the Control of Tobacco Product and Smoking Bill 2022 may be unconstitutional, discriminatory, and affect civil liberties, former Chief Justice Zaki Azmi said.

Zaki cited Article 5 of the Federal Constitution that guarantees the right to personal liberty, as well as Article 8 on the right to equality and equal protection under the law.

On Article 5, the former head judge believes that there is no conflict with the tobacco control bill, saying the Federal Constitution permits the deprivation of personal liberty to a reasonable and non-arbitrary extent.

However, Zaki said the proposed tobacco generational end game (GEG) – which seeks to prohibit the sale to and use by anyone born from January 1, 2007, of tobacco and vape products – was arguably discriminatory and in violation of Article 8 of the Federal Constitution.

He first explained that Article 8 should be interpreted as the law having to “operate alike on all persons under like circumstances”, rather than “all persons must be treated alike”.

“Thus, it is worth asking whether setting an age limit on a permanent prohibition to smoke is discriminatory and against the spirit of Article 8,” Zaki wrote in a letter to The Star published today, titled “Legal perils of the Control of Tobacco Product and Smoking Bill 2022”.

He pointed out that although the government has the right to set a minimum legal age for various issues – such as marriage, voting, liability of crime, and capacity to contract – these age prerequisites act as a “temporary gatekeeper as opposed to the Bill’s permanent prohibition with the GEG”.

“If two adults attempt to purchase and consume tobacco or a smoking device but one is prohibited for life from it on the basis that he was born on or after Jan 1, 2007 while the other is not because he was born on Dec 31, 2006, is this against the principle of equality applying on individuals in ‘like circumstances’?”

Zaki also cited Padang Rengas MP Mohamed Nazri Abdul Aziz, another lawyer, who told the Dewan Rakyat during debate on the tobacco control bill last August 1 that the GEG would effectively remove freedom of choice from adults who turn 18 in 2025, the year that the government intends to implement the generational ban on smoking and vaping.

“The essence of a generational endgame can be argued to be discriminatory, as it deprives a generation of adults from exercising what they may claim to be their freedom of choice while other adults face no similar deprivation,” Zaki noted. 

“This differs from when the State regulates consumption of tobacco or smoking through increased taxes and regulations, where the regulations are applied equally on all adults. So while the State may regulate tobacco and smoking, freedom to do so should be given to the individual.”

The former chief justice also expressed concern with “broad” enforcement powers provided for in the Control of Tobacco Product and Smoking Bill 2022, citing powers to authorised officers to gain access to any recorded information or data on any device; to enter any premises, commercial or residential, for investigations; searches of baggage and packages; and searches and seizures without warrants.

“These provisions raise significant issues of disproportionality and endangering civil liberties. Protection of civil liberties is the cornerstone of the Federal Constitution,” Zaki stressed. 

“Malaysians have seen the slow erosion of these liberties over the years as more and more laws have come into effect, allowing enforcement agencies greater powers to invade one’s privacy and intrude into one’s home and person.”

Zaki cited Section 26 of the Control of Tobacco Product and Smoking Bill 2022 that empowers authorised officers to enter any premises at any reasonable time for investigation purposes, as well as to enter residences that are suspected to be in breach of the tobacco control law.

“The current iteration of the bill is yet another Act that endangers civil liberties through wide-ranging powers accorded to both the Health Minister and authorised officers,” he said.

Zaki also cited Section 33 of the tobacco control bill that permits search and seizure without warrant if the officer has reasonable cause to believe that delay from obtaining a search warrant would affect the investigation. 

“It is extremely concerning that Malaysian civil liberties are at stake and potentially open to abuse in this bill.”

The former chief justice acknowledged that the Attorney-General’s drafting department may argue that similar provisions on enforcement powers may already be found in other legislations.

“But as citizens are complaining about abuse of powers by civil servants, perhaps the powers given under this law should be worded more guardedly.”

Zaki also expressed befuddlement over Section 21 of the tobacco control bill that empowers the minister to set up a committee if, on advice of the Health director-general, “there is an acute and critical situation” regarding the use of tobacco etc.

“Even as a lawyer, I do not understand what these words could or are intended to mean in the context of the Bill or the section specifically (unless I missed something). Again, the powers conferred by this provision can be open to abuse,” Zaki wrote.

“The draftsmen must try to define these words for the bill or cite certain situations to guide the minister and director-general as to when Section 21 is to be invoked.”

Zaki welcomed Health Minister Khairy Jamaluddin’s previous announcement to reduce the standard fines for GEG offenders from RM5,000 to RM500, to introduce community service as an alternative to fines, and to remove body searches for minors below the age of 18.

“However, no amendments have been announced on the concerns from MPs and the public alike on the disproportionate and sweeping powers accorded to the health minister and enforcement officers as mentioned above, nor a comprehensive review of the constitutionality of the GEG law itself,” he said.

“While the bill is paved with good intentions, alas, fear of abuse of unchecked powers held by the authorities in Malaysia is a real one.

“Invasive and sweeping enforcement powers have, unfortunately, left a terrible scar on the collective Malaysian psyche. Each of these concerns must be given due consideration when reviewing the bill.”

The 13-member bipartisan parliamentary special select committee (PSSC) chaired by Khairy, which was formed to review the tobacco bill after it was tabled in the Dewan Rakyat last month, met for the third time yesterday. 

CodeBlue reported that the PSSC’s second meeting held last September 8 agreed to retain Section 17(1)(a) and (b) of the Control of Tobacco Product and Smoking Bill that prohibit those born from 2007 from smoking or vaping, or using tobacco or vape products. However, the committee agreed to drop Section 17(1)(c) that prohibits possession of these products by the next generation.

Muar MP and Muda president Syed Saddiq Syed Abdul Rahman, who is not a member of the tobacco bill PSSC, yesterday urged the government to remove “archaic and outdated elements” in the bill, citing concerns with enforcement powers to raid one’s home and the deregistration of businesses that “accidentally” sell cigarettes to the GEG group.

Zaki, the sixth chief justice of Malaysia who served from 2008 to 2011, told lawmakers to be responsible and cautious by only allowing the authorities “such powers that are absolutely necessary to achieve the objectives of the bill”.

“While we take our hats off to the Minister for his determination to one day totally eradicate the smoking habit, it must be ensured that in the course of doing so, the generations of tomorrow will not come to regret the decisions we make today.”

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